Common use of ROFO Clause in Contracts

ROFO. (it being understood that if Tenant fails to deliver such Tenant ROFO Acceptance within such fifteen (15) Business Day period, the Tenant ROFO shall terminate with respect to such sale of the Leased Property). Upon Landlord’s receipt of the Tenant ROFO Acceptance, Landlord and Tenant shall have a period of forty-five (45) days to negotiate in good faith a definitive purchase and sale agreement for the Leased Property. If Landlord and Tenant are not able to reach agreement during such forty five (45) day period on the terms of a purchase and sale agreement, then Landlord shall be free to market the Leased Property for sale; provided that if Landlord intends to enter into a contract on terms materially more favorable than those offered in the Landlord ROFO Notice, then (i) the Tenant ROFO shall be reinstated, (ii) Landlord shall be required to deliver written notice to Tenant setting forth such more favorable terms and (iii) Tenant shall then have thirty (30) days to finalize and execute a definitive purchase and sale agreement for the Leased Property with Landlord (each of Tenant and Landlord agree to negotiate such documentation in good faith) on such more favorable terms (but if such purchase agreement is not finalized and executed within such thirty (30) day period, the Tenant ROFO shall be terminated). As used herein “terms materially more favorable” shall mean a total consideration of less than ninety-five percent (95%) of the consideration at which such sale or other transfer was offered to Tenant in the Landlord ROFO Notice. If Landlord has not consummated a sale of the Leased Property in accordance with this Section 18.2 within one hundred eighty (180) days after Tenant has failed to timely provide a Tenant ROFO Acceptance or the parties have failed to enter into a purchase and sale agreement within the applicable period described above, as applicable, then the provisions of this Section 18.2 must again be complied with in respect of any proposed transaction; provided that, if Landlord has not consummated a sale of the Leased Property in accordance with this Section 18.2 within such one hundred eighty (180) day period solely as a result of the failure to obtain all licenses, qualifications or approvals that are necessary to consummate such sale from all necessary governmental authorities, then such one hundred eighty (180) day period shall be extended by and additional ninety (90) days, provided Landlord is exercising commercially reasonable efforts to obtain the same. This Section 18.2 shall apply to any transfer of the direct or indirect equity interests in Landlord that would have the effect of, and the primary purpose of which is, an indirect transfer of all or substantially all of the Leased Property, mutatis mutandis.

ROFO. At any time after the Commercial Operation Date, if Seller proposes to sell the Facility to an unaffiliated third party, Seller shall first offer to sell the Facility to Company via notice to Company, if Seller’s parent proposes to sell a majority of the equity interests in Seller to an unaffiliated third party, Seller shall cause its parent first to offer to sell such equity interests to Company via notice to Company, and if Seller’s parent owns no assets other than its equity interests in Seller and the parent of Seller’s parent proposes to sell a majority of the equity interests in Seller’s parent to an unaffiliated third party, Seller shall cause its parent’s parent first to offer to sell such equity interests to Company via notice to Company (it being understood that if Tenant fails in each case, a “ROFO Notice”) Any ROFO Notice shall describe the proposed transaction, including the minimum price, status of title to deliver the Site, liabilities to be assumed and other terms which Seller or its relevant parent (as applicable) is willing to accept to proceed with the contemplated transaction. The contents of a ROFO Notice shall be deemed Confidential Information for purposes of Section 20.19 below. Following issuance of a ROFO Notice, Seller shall allow Company 60 Days to investigate the proposed transaction and conduct due diligence. Due diligence shall include such Tenant ROFO Acceptance within physical inspections, surveys and operating tests of the Facility and the Site, such fifteen (15) Business reviews of Seller’s contracts, books and records, and interviews of such personnel, as Company may reasonably request. All information obtained by Company from such investigations shall be deemed Confidential Information subject to Section 20.19 below. Within such 60-Day period, Company may elect to purchase the Tenant Facility or the relevant equity interests (as applicable) on substantially the same terms as set forth in the ROFO Notice. If Company fails to notify Seller of Company’s election within such 60-Day period, Company shall terminate with respect be deemed to such sale of have rejected the Leased Propertytransaction. If Company elects to purchase the Facility or the specified equity interests (as applicable), the Parties shall negotiate and execute a definitive contract for the transaction (a “PSA”). Upon Landlord’s receipt of The PSA shall include the Tenant price and other terms set forth in the ROFO Acceptance, Landlord Notice and Tenant shall have a period of forty-five (45) days to negotiate such other terms as are set forth in good faith a definitive purchase and sale agreement for Exhibit R – PSA Provisions. In the Leased Property. If Landlord and Tenant are event that the Parties cannot able to reach agreement during such forty five (45) day period agree on the terms final form of a purchase and sale agreementPSA, then Landlord shall be free to market the Leased Property for sale; provided that if Landlord intends to enter into a contract on terms materially more favorable than those offered in the Landlord ROFO Notice, then (i) the Tenant ROFO issue shall be reinstatedsubmitted to “baseball” arbitration in Denver, Colorado before one arbitrator appointed by the Arbitration Service, i.e. each Party shall submit to the arbitrator a form of proposed PSA, and the arbitrator shall be required to select one of the two forms to be used as the PSA in the transaction, without compromise, as the arbitral award, (ii) Landlord the period for closing of the transaction shall be extended for the period required to deliver written notice to Tenant setting forth such more favorable terms complete arbitration, and (iii) Tenant the Party whose form PSA is rejected shall then pay the fees and costs of the Arbitration Service. If Company rejects the transaction described in a ROFO Notice, Seller shall have thirty the right to sell the Facility (30) days or Seller’s relevant parent shall have the right to finalize and execute a definitive purchase and sale agreement for sell the Leased Property with Landlord (each of Tenant and Landlord agree to negotiate such documentation in good faithspecified equity interests, as applicable) on such terms not more favorable to Seller or its parent vs. the terms (but if such purchase agreement is not finalized and executed set forth in the ROFO Notice, at any time within such thirty (30) day period, the Tenant ROFO shall be terminated). As used herein “terms materially more favorable” shall mean a total consideration of less than ninetytwelve-five percent (95%) month period following issuance of the consideration at which such sale or other transfer was offered to Tenant in the Landlord ROFO Notice. If Landlord has not consummated Seller or its relevant parent fails to close a transaction on such terms within such 12-month period, any sale of the Leased Property Facility or equity interests in accordance with Seller shall again be subject to this Section 18.2 within one hundred eighty (180) days after Tenant has failed to timely provide a Tenant ROFO Acceptance or the parties have failed to enter into a purchase and sale agreement within the applicable period described above, as applicable, then the provisions of this Section 18.2 must again be complied with in respect of any proposed transaction; provided that, if Landlord has not consummated a sale of the Leased Property in accordance with this Section 18.2 within such one hundred eighty (180) day period solely as a result of the failure to obtain all licenses, qualifications or approvals that are necessary to consummate such sale from all necessary governmental authorities, then such one hundred eighty (180) day period shall be extended by and additional ninety (90) days, provided Landlord is exercising commercially reasonable efforts to obtain the same19.3. This Section 18.2 19.3 shall apply be specifically enforceable by Company, without bond and without the need to any transfer of the direct or indirect equity interests prove irreparable harm. Seller shall cooperate in Landlord that would have the effect ofall respects reasonably necessary for Company to exercise its ROFO rights, and shall operate the primary purpose Facility in the ordinary course of which is, an indirect transfer business following the date of all or substantially all issuance of the Leased Property, mutatis mutandisa ROFO Notice.

ROFO. Prior to offering to lease or sell all or any portion of the Adjacent Premises during or prior to the Lease Term to a third party, Landlord shall first deliver to Tenant a detailed written notice of the financial terms and the amount of space of the Adjacent Premises which Landlord intends to lease or sell to a third party (it being understood that if the “ROFO Notice”). Tenant’s right to lease or purchase the foregoing portion of the Adjacent Premises shall be for the same Base Monthly Rent rate, term, and other financial terms and conditions as are specified in the ROFO Notice (the “ROFO”). The ROFO Notice shall also specify, in reasonable detail, any buildings or improvements which Landlord intends to construct or install on the Adjacent Premises and the timing of such construction and/or installation. The ROFO Notice shall be given as provided in Section 27.01 above. Tenant shall have a period of fifteen (15) Business Days from receipt of the ROFO Notice to accept or reject the ROFO. Tenant shall accept the ROFO by delivery of written notice of acceptance to Landlord within the foregoing fifteen (15) Business Day period. In the event Tenant provides a written rejection, does not accept the ROFO, makes a substantial change to the ROFO terms, or otherwise fails to deliver such Tenant ROFO Acceptance provide written notice of acceptance to Landlord within such the foregoing fifteen (15) Business Day period, then Tenant shall be deemed to have rejected the Tenant ROFO and Landlord shall terminate with respect be free to such sale sell or lease the offered portion of the Leased Property). Upon Landlord’s receipt of Adjacent Premises specified in the Tenant ROFO AcceptanceNotice to any third party at any time on substantially the same or more beneficial terms to Landlord set forth in the ROFO Notice; provided, however, that if Landlord and Tenant shall have fails, for any reason to fully execute a period of forty-five (45) days to negotiate in good faith a definitive purchase and sale agreement for the Leased Property. If Landlord and Tenant are not able to reach agreement during such forty five (45) day period on the terms of a purchase and sale agreement, then Landlord shall be free to market the Leased Property for sale; provided that if Landlord intends to enter into a contract on terms materially more favorable than those offered in the Landlord ROFO Notice, then (i) the Tenant ROFO shall be reinstated, (ii) Landlord shall be required to deliver written notice to Tenant setting forth such more favorable terms and (iii) Tenant shall then have thirty (30) days to finalize and execute a definitive purchase and sale agreement for the Leased Property with Landlord (each of Tenant and Landlord agree to negotiate such documentation in good faith) on such more favorable terms (but if such purchase agreement is not finalized and executed within such thirty (30) day period, the Tenant ROFO shall be terminated). As used herein “terms materially more favorable” shall mean a total consideration of less than ninety-five percent (95%) of the consideration at which such sale or other transfer was offered to Tenant in the Landlord ROFO Notice. If Landlord has not consummated a sale of the Leased Property Adjacent Premises (in accordance the case of a sale thereof), or fully execute a lease of the Adjacent Premises with this Section 18.2 a third party (in the case of a lease thereof), within one hundred eighty (180) days after Tenant has failed rejects (or is deemed to timely provide a have rejected) Landlord’s ROFO Notice, then Landlord be obligated, prior to selling or leasing the Adjacent Premises, to again offer the Adjacent Premises to Tenant ROFO Acceptance for lease or the parties have failed to enter into a purchase and sale agreement within the applicable period described above, (as applicable) pursuant to a ROFO Notice, then in which event the provisions preceding terms of this Section 18.2 must 42.02 shall again be complied with apply. A reduction in respect of any proposed transaction; provided that, if Landlord has not consummated a sale of the Leased Property sales price, lease rate, lease term, or offered portion of the Adjacent Premises of five percent (5%) or less shall not be deemed a substantial change in terms for purposes of this Section 42.02. Upon exercise of the ROFO, Tenant’s obligations to lease or purchase the portion of the Adjacent Premises specified in the ROFO Notice in accordance with the terms and conditions set forth in this Section 18.2 within such one hundred eighty Article 43 shall be irrevocable. The period during which the ROFO shall apply (180the “ROFO Period”) day period solely shall commence on the date of this Lease, and shall expire upon the expiration or earlier termination of the Lease; provided, that if the Lease shall terminate as a result of the failure to obtain all licenses, qualifications or approvals that are necessary to consummate such sale from all necessary governmental authoritiesTenant’s exercise of its Purchase Option described in Article 43 below, then such one hundred eighty the ROFO Period shall expire on the date that is immediately prior to the thirty-fifth (18035th) day period shall be extended by and additional ninety (90) days, provided Landlord is exercising commercially reasonable efforts to obtain the same. This Section 18.2 shall apply to any transfer anniversary of the direct or indirect equity interests in Landlord that would have the effect of, and the primary purpose of which is, an indirect transfer of all or substantially all of the Leased Property, mutatis mutandisLease Commencement Date.

ROFO. If, during the Lease Term, (it being understood that a) Landlord determines to offer all or any portion of the Property to the market (“Take to Market”) for sale; or (b) Landlord receives a bona fide, unsolicited offer from an unrelated third party (an “Unsolicited Offer”; the third party making such Unsolicited Offer, the “Unsolicited Offeror”) to purchase all or any portion of the Property (such portion of the Property, the “Offered Property”), then (A) in the Take to Market scenario, Landlord will notify Tenant, before taking the Offered Property to the market, of the terms upon which Landlord intends to offer the Offered Property for sale to the market; and (B) in the Unsolicited Offer scenario, if Landlord intends to accept an Unsolicited Offer, Landlord will first provide Tenant, before entering into any agreement with the Unsolicited Offeror, a copy of the written offer from the Unsolicited Offeror (in either such scenario, such notification from Landlord to Tenant, the “ROFO Purchase Notice”). Landlord shall not submit a ROFO Purchase Notice before Substantial Completion (defined in the Work Letter, Addendum [X]) under either the Take to Market or Unsolicited Offeror scenario. For avoidance of doubt, Landlord shall not Take to Market or accept an Unsolicited Offer before Substantial Completion and before submittal of a ROFO Purchase Notice to Tenant. At the time Landlord delivers a ROFO Purchase Notice, Landlord will also deliver to Tenant fails a purchase agreement containing the economic terms set forth in the ROFO Purchase Notice, and the following additional terms (the “ROFO/ROFR Purchase Agreement”): (i) a feasibility period of thirty (30) days, with Tenant having a right of termination during such period; (ii) closing to deliver such Tenant ROFO Acceptance occur within such fifteen (15) Business Day Days after waiver by Tenant, or expiration, of its feasibility period, ; (iii) for closing costs to be paid as is customary for the area in which the Property is located; (iv) that Tenant ROFO shall terminate may assign the purchase agreement to any third party without Landlord consent; and (v) standard representations and warranties by Landlord with respect to such sale authority and ownership of the Leased Property). Upon Landlord’s receipt of the Tenant ROFO Acceptance, Landlord and Tenant shall have a period of forty-five (45) days to negotiate in good faith a definitive purchase and sale agreement for the Leased Property. If Landlord and Tenant are not able a contract for sale is required by Legal Requirements to reach agreement during such forty five (45) day period on be identified or agreed upon in order for Tenant’s ROFO to be enforceable, the parties agree to use a broker-standard form promulgated by the applicable broker’s association in the area where the Property is located, but incorporating the terms of a purchase and sale agreement, then Landlord shall be free to market the Leased Property for sale; provided that if Landlord intends to enter into a contract on terms materially more favorable than those offered in the Landlord ROFO Notice, then (i) the Tenant ROFO shall be reinstated, (ii) Landlord shall be required to deliver written notice to Tenant setting set forth such more favorable terms and (iii) Tenant shall then have thirty (30) days to finalize and execute a definitive purchase and sale agreement for the Leased Property with Landlord (each of Tenant and Landlord agree to negotiate such documentation in good faith) on such more favorable terms (but if such purchase agreement is not finalized and executed within such thirty (30) day period, the Tenant ROFO shall be terminated). As used herein “terms materially more favorable” shall mean a total consideration of less than ninety-five percent (95%) of the consideration at which such sale or other transfer was offered to Tenant in the Landlord ROFO Notice. If Landlord has not consummated a sale of the Leased Property in accordance with this Section 18.2 within one hundred eighty (180) days after Tenant has failed to timely provide a Tenant ROFO Acceptance or the parties have failed to enter into a purchase and sale agreement within the applicable period described above, as applicable, then the provisions of this Section 18.2 must again be complied with in respect of any proposed transaction; provided that, if Landlord has not consummated a sale of the Leased Property in accordance with this Section 18.2 within such one hundred eighty (180) day period solely as a result of the failure to obtain all licenses, qualifications or approvals that are necessary to consummate such sale from all necessary governmental authorities, then such one hundred eighty (180) day period shall be extended by and additional ninety (90) days, provided Landlord is exercising commercially reasonable efforts to obtain the same. This Section 18.2 shall apply to any transfer of the direct or indirect equity interests in Landlord that would have the effect of, and the primary purpose of which is, an indirect transfer of all or substantially all of the Leased Property, mutatis mutandis.

ROFO. The Shareholders' Agreement will contain the following ROFO provisions, which shall not apply in the event of an Exit: (it i) transfers by certain Investors (each, in such capacity, a "Transferring Investor"), being understood at any time following: (a) the Lock-in Period, any Super Material Investor; and (b) the fifth anniversary of Offer Completion, any Material Investor (“Material Investor Initiated ROFO”), Matter Terms of any of its Shareholder Instruments shall be subject to a ROFO in favour of the Lead Investor (the “Lead Investor ROFO”) (which, provided that if Tenant fails to deliver the Requisite Approval has been obtained, shall be exercisable by Xxxxxx, in whole or in part, at the Lead Investor's direction) (in such Tenant ROFO Acceptance within such fifteen (15) Business Day periodcapacity, the Tenant ROFO shall terminate with respect to "Non-Transferring Investor"); and (ii) transfers by the Lead Investor (in such sale capacity, a "Transferring Investor") of any of its Shareholder Instruments following the Leased Property). Upon Landlord’s receipt of the Tenant ROFO Acceptance, Landlord and Tenant shall have a period of forty-five (45) days to negotiate Lock- in good faith a definitive purchase and sale agreement for the Leased Property. If Landlord and Tenant are not able to reach agreement during such forty five (45) day period on the terms of a purchase and sale agreement, then Landlord Period shall be free subject to market a ROFO in favour of any Super Material Investor (each, in such capacity, a "Non-Transferring Investor"), whereby the Leased Property for sale; provided that if Landlord intends Transferring Investor shall be required to enter into a contract on terms materially more favorable than those offered in first offer such Shareholder Instruments (the Landlord "ROFO Instruments") to the Non-Transferring Investor(s) by written notice to the Non-Transferring Investor(s) (the "ROFO Notice"), then provided that: (i) the Tenant Non-Transferring Investor(s) shall, within 30 Business Days of receipt of the ROFO shall be reinstatedNotice (the “ROFO Closing Date”), propose a cash transfer price for all (but not some of) the ROFO Instruments (the “ROFO Price”) together with any other material terms of the sale in the form of an irrevocable written notice to the Transferring Investor (the “ROFO Offer Notice”); and (ii) Landlord if: (a) no Non-Transferring Investor serves a ROFO Offer Notice on the Transferring Investor within 30 Business Days of the ROFO Notice; or (b) one or more Non-Transferring Investors serve a ROFO Offer Notice on the Transferring Investor but the Transferring Investor does not, within 20 Business Days following the receipt of such ROFO Offer Notice, accept the terms contained in any of the ROFO Offer Notices, the Transferring Investor may transfer the ROFO Instruments to a third party within six months of the ROFO Closing Date for a cash transfer price which shall not be less than the highest ROFO Price offered by the Non-Transferring Investor(s) for such ROFO Instruments and terms no more favourable in all material respects than the terms offered by the Non-Transferring Investor(s), provided that the terms of paragraph 21 are complied with (to the extent applicable). If the Lead Investor ROFO is exercised and the Transferring Investor accepts the terms of the ROFO Offer Notice, Fireball shall be required entitled, but not obliged, to deliver written notice to Tenant setting forth such more favorable acquire a pro rata proportion of the ROFO Instruments on the same terms as agreed between the Lead Investor and (iii) Tenant the Transferring Investor. For the avoidance of doubt, the ROFO Price shall then have thirty (30) days to finalize and execute a definitive purchase and sale agreement for the Leased Property with Landlord (be payable in cash. If Combination Completion has not occurred within 30 months of Offer Completion, each of Tenant Manchester and Landlord agree to negotiate such documentation in good faith) on such more favorable terms (but if such purchase agreement is not finalized and executed within such thirty (30) day period, the Tenant ROFO Alpha shall be terminated). As used herein “terms materially more favorable” shall mean entitled to initiate the process for a total consideration of less than ninety-five percent (95%) of the consideration at which such sale or other transfer was offered to Tenant in the Landlord Material Investor Initiated ROFO Notice. If Landlord has not consummated a sale of the Leased Property in accordance with this Section 18.2 within one hundred eighty (180) days after Tenant has failed to timely provide a Tenant ROFO Acceptance or the parties have failed to enter into a purchase and sale agreement within the applicable period described above, as applicable, then the provisions of this Section 18.2 must again be complied with in respect of any proposed transaction; provided that, if Landlord has not consummated a sale all of the Leased Property in accordance with this Section 18.2 its Shareholder Instruments within twelve months thereafter. Any such one hundred eighty (180) day period solely as a result of the failure to obtain all licenses, qualifications or approvals that are necessary to consummate such sale from all necessary governmental authorities, then such one hundred eighty (180) day period third party transferee resulting therefrom shall be extended by and additional ninety (90) days, provided Landlord is exercising commercially reasonable efforts deemed to obtain the same. This Section 18.2 shall apply to any transfer of the direct or indirect equity interests in Landlord that would have the effect of, and the primary purpose of which is, be an indirect transfer of all or substantially all of the Leased Property, mutatis mutandisAnchor Investor.